2018 C L C 1930
[Balochistan]
Before Muhammad Ejaz Swati, J
KAUSAR ALI and another ----Petitioner
Versus
JAVED ANJUM and 6 others ----Respondents
Civil Revision No.560 of 2010, decided on 21st June, 2018. (a) Gift---
----Mutation ---Inheritance--- Limitation ---Claimant's predecessor -in- interest not challenging
such mutation during his lifetime ---Effect ---Plea of plaintiffs was that impugned mutation was
illegal and they were entitled for their shares in the inheritance ---Suit was decreed concurrently --
-Validity ---Predecessor -in-interest of plaintiffs had not challenged the impugned mutation in his
lifetime ---If a heir who was directly affected by a wrong mutation of inheritance had not
challenged the same till his death, his legal heirs had no locus standi to dispute such mutation---
Findings recorded by the Courts below were result of mis -reading and non -reading of evidence --
-Impugned judgments and decrees passed by the Courts below could not sustain which were set
aside- --Suit filed by the plaintiffs was dismissed ---Revision was allowed in accordingly.
2002 SCMR 1330, 2004 SCMR 299 and Muhammad Rustam and another v. Mst.
Makhan Jan and another 2013 SCMR 299 ref. (b) Evidence ---
----Pleadings ---Evidence could not be led or looked into in support of a plea which had not been
taken in the pleadings.
Farooq Ahmed v. Chairman Federal Public Service Commission Islamabad, 1998 SCMR
336 rel. Mrs. Shehnaz Rana for Petitioner.
Abdul Ghayyas Nausherwani for Respondents Nos.1 to 4.
Farooq Sarwar, Assistant Advocate -General for Official Respondent.
Date of hearing: 17th May, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----Late Anjum Qazalbash predecessor -in-interest of
the respondents Nos.1 to 4 (plaintiffs) and late Ramzan Ali Qazal bash husband of Ruqayya
Begum were owner of property vide Intiqal No. 1377, Khewat and Khatoon No. 291/246, Khasra
No 5120, Measuring 1513 sq.ft. situated in Mohal Ward No 15, Mouza Urban Tappa, Quetta Tehsil and District, Quetta with equal share. The predecessor -in-interest of respondents Nos.1 to
4 (plaintiffs) in his lifetime gifted his half share in favour of late Ramzan Ali vide Intiqal No.
1378 dated 1st March 1982. The late Ramzan Ali vide registered "will"/Wasiat -Nama dated 31st
August 1998 declared his wife i.e. Ruqayya Begum as sole owner of the property. Ramzan Ali
Qazalbash died on 5th May 2006 and the entries of the property in dispute were carried out on
the name of widow of late Ramzan Qazalbash namely Ruqayya Begum vide Intiqal No. 381 dated 6th July 2006. The widow of late Ramzan Ali Qazalbash vide Intiqal No. 387 dated 13th
February, 2007 transferred the property in favour of petitioner (defendant No.2). Late Anjum Qazalbash died on 6th December 2007. The respondents Nos.1 to 4 (plaintiffs) (predecessor in interest of late Anjum Qazalbash) brought a suit and challenged the mutation of gift No. 1378 dated 1st March 1982, mutation No. 381 dated 5th July 2006 and mutation No. 387 dated 13th February 2007 on the ground that mutation of gift was i llegal and mutation on the basis of
registered "will" in favour of Ruqayya Begum and her subsequent transfer in favour of petitioner (defendant No.2) be declared without lawful authority. It was further averred that late Ramzan Ali Qazalbash was issueless, therefore, after his death, Ruqayya Begum being his widow was
only entitled to have 1/4th share, as such, subsequent entries were illegal and liable to be cancelled.
2. The suit was contested by Ruqayya Begum (defendant No.1) widow of Ramzan Ali and
Kausar Ali (the petitioner) by way of filing written statement on the ground that through mutation No. 1378 attested on 1st March 1982 Ramzan Ali Qazalbash was exclusive owner of
the house in dispute and through registered "will" dated 31st August 1998, the house in question was transferred on the name of Ruqayya Begum through mutation No. 381 attested on 6th July 2006 during lifetime of predecessor of respondents Nos.1 to 4. It was further alleged that the petitioner lawfully purchased the property from widow of Ramzan Ali Qazalbash, as such became exclusive owner in good faith with consideration.
3. Out of divergent pleadings of the parties, following issues were framed:
1. Whether the plaintiffs' suit is not maintainable in view of P.L.O's "A", "B", "C",
"D", "F", "H" and "K" raised by the defendants in their written . statements?
2. Whether the plaintiffs are owners of half share of property in dispute as legal heirs
of late Anjum Qazalbash and they are also entitled to their respective shares from the remaini ng half share of their uncle late Ramzan Ali being his lawful/legal heirs?
3. Whether the predecessor -in-interest of plaintiffs' namely Anjum Qazalbash gifted
suit property in the name of his brother Ramzan Ali with possession which was not challenged by h im during his lifetime?
4. Whether the suit property was transferred in the name of defendant No.1 on 06-
07-2006 within the knowledge and consent of predecessor in interest of plaintiffs which
was never challenged by him during his lifetime?
5. Whether the late Ramzan Ali had executed the will in favour of defendant No.1
during lifetime of predecessor -in-interest of plaintiffs and the same was not disputed by
predecessor -in-interest of plaintiffs nor claimed any right of inheritance in suit prope rty
after death of Ramzan Ali?
6. Whether the defendant No.1 has lawfully entered into sale agreement with
defendant No.2 pertaining to the suit property and the same was also in the knowledge of
predecessor in interest of plaintiffs?
7. Whether plaintiffs are entitled to the relief claimed for?
8. Relief?
4. After adducing evidence by both the parties, the learned Civil Judge -III, Quetta
(hereinafter the "trial Court") vide judgment/decree dated 29th December 2009 (hereinafter the
"impugned judgment/decree ") decreed the suit in favour of the respondents Nos.1 to 4 on the
ground that they are entitled to receive their share from the house in question as legal heirs of Ramzan Ali after deducting 1/4th share of Ruqayya Begum and also cancelled the sale deed dated 14th November 2006 in favour of the petitioner. On appeal filed by the petitioner, the
learned Additional Sessions Judge -I, Quetta (hereinafter the "appellate Court") vide
judgment/decree dated 24th September 2010 (hereinafter the "impugned judgment/de cree")
dismissed the appeal.
5. Learned counsel for the petitioner contended that the father of respondents Nos.1 to 4
(plaintiffs) died on 6th December 2007, while all the mutations including the mutations in favour of the petitioner were carried out in t he lifetime of predecessor in interest of the plaintiffs, who
has not challenged the same, therefore, the plaintiffs had no right and entitlement to have challenged the impugned entries; that the trial Court as well as the appellate Court erred in holding that the mutation entries carried out in favour of widow of late Ramzan Ali Qazalbash
were result of misrepresentation and fraud, but in this respect the documentary evidence i.e. registration deed had not been considered by the Courts below.
Learned coun sel for the respondents Nos.1 to 4 contended that late Ramzan Ali
Qazalbash was uncle of plaintiffs, who was issueless and after his death, Ruqayya Begum widow
of late Ramzan Qazalbash was only entitled for 1/4th share and the remaining would devolve upon the plaintiffs, but the impugned mutations were carried out contrary to Sharia and without
consent of other legal heirs.
6. Having heard the learned counsel for the parties and perused the record. The house in
question was initially owned by Noor Zaman, who had two sons namely Anjum Qazalbash
predecessor in interest of the respondents Nos.1 to 4 (plaintiffs) and Ramzan Ali Qazalbash husband of Ruqayya Begum. After the demise of Noor Zaman, the house in question was devolved on the name of late Anjum Qazalba sh and Ramzan Ali Qazalbash in equal share vide
Intiqal No. 1377 in the year 1982. The record of the case indicates that Anjum Qazalbash gifted his half share to Ramzan Ali Qazalbash in the year 1982 vide mutation No. 1378 dated 1st March 1982. After becom ing exclusive owner of the house in question, Ramzan Ali Qazalbash executed
a registered "will" on 31st August 1998 and after the death of Ramzan Ali Qazalbash late, the
mutation of the house in question was recorded on the name of Ruqayya Begum through Intiqal-
e-Wirasat dated 5th May 2006 vide Intiqal No.381 dated 6th July 2006. The widow of Ramzan
Ali Qazalbash through registered sale deed dated 14th November 2006, sold the house in question, on the basis whereof mutation No. 387 dated 13th February 2007 was carried out in favour of the petitioner. Anjum Qazalbash, the predecessor in interest of the plaintiffs died on
6th December 2007, while late Ramzan Qazalbash died on 5th May 2006. The petitioners being
son, daughter and widow of late Ramzan Ali filed a suit for cancellation of mutation No.381
dated 6th July 2006 and cancellation of registered sale deed dated 14th November 2006 and mutation No.387 dated 13th February 2007. The trial Court resolved issue No.3 with regard to gift of half share of Anjum Qa zalbash in favour of late Ramzan Ali Qazalbash through mutation
Ex.P/2 and was held valid on the ground that predecessor in interest of the plaintiffs had not Challenged the said gift in his lifetime, whereas, the mutation No.381 dated 6th July 2006 and mutation No. 387 dated 13th February 2007 were cancelled on the same ground. Admittedly, the
predecessor -in-interest of the respondents Nos.1 to 4 (plaintiffs) namely late Anjum Qazalbash
died on 6th December 2007 and it is quite obvious from the record that at the time of registered
will dated 31st August 1998 and the impugned mutations, the predecessor in interest of the plaintiffs was alive, as PW -4 Muhammad Sadiq in cross -examination admitted as under:
The attorney for the plaintiffs in cross -examinati on also admitted as under: --
The contention of learned counsel for the respondents Nos.1 to 4 (plaintiffs) that in the
aforesaid cross -examination, the attorney for the plaintiffs specifically replied that their
predecessor in interest was not aware abo ut the impugned mutation entries, is also not tenable,
because in paragraph No.5 of the plaint, it was pleaded as under:
"The plaintiffs after the death of their father/husband came to know that Ramzan Ali (late) during his lifetime mutated illegal Intiqal No. 1378 on the basis of illegal gift in his
favour on 01- 03-1982. The late Ramzan Ali even executed the illegal registered
will/Wasiat Nama on 31 -08-1998 and concealed the same from legal heirs."
8. The plaintiffs neither in the aforesaid paragraph nor i n "cause of action" clause, pleaded
that their father late Anjum Qazalbash in his lifetime was not aware about the impugned
mutation, therefore, the contention of the attorney for the plaintiffs in the aforesaid cross -
examination that the father was not aw are about the impugned mutation was outright divergent to
the pleadings, which cannot be taken into consideration. It is well settled principle that no
evidence can be led or looked into in support of a plea, which has not been taken in the pleadings. In F arooq_Ahmed v. Chairman Federal Public Service Commission Islamabad, 1998
SCMR 336, the Hon'ble Supreme Court of Pakistan observed that "No party can be allowed to
lead evidence on the fact, which had not been specifically pleaded nor can any evidence be
looked into which is outside the pleadings".
9. In the instant ease, the respondents Nos.1 to 4 (plaintiffs) filed a suit in November 2008
for cancellation of the impugned mutation, while their predecessor -in-interest namely late Anjum
Qazalbash had not challenged the impugned mutation in his lifetime. It is well settled principle that a heir who is directly affected by a wrongful recorded mutation of inheritance had not challenged the same till his death, then his legal heirs had no locus -standi to dispute such
mutation. Reference in this respect is to be made to the case/judgments reported in 2002 SCMR 1330 and 2004 SCMR 299. In the case titled Muhammad Rustam and another v. Mst. Makhan Jan and another, 2013 SCMR 299, the Hon'ble Supreme Court of Pakistan observed as under:
" . ... ...we find that admittedly the impugned mutation of inheritance bearing No. 571
dated 9 -7-1927 was never challenged by Mst. Karam Jan; that she remained alive till
1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to
indicate as to why she did not challenge the said imitation. It has never been the case of
the petitioners that either they or their predecessor -in-interest were unaware of the said
mutation. In the afore -referred circumstances, the judgment of the learned High Court is
unexceptionable. So far as the precedent case- law to which reference has been made by
petitioners' learned counsel is concerned, the Game is distinguishable as in none of the judgments the question of locus standi was a moot point. In Abdul Haq v. Mst. Surraya
Begum (2002 SCMR 1330), this Court inter alia was seized of a similar issue and while dismissing the petition, it observed as follows: --
"11. Atta Muhammad was deprived of right to inherit the property as a conse quence of
mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
10. In the instant case, the mutation No. 381 dated 6th July 2006 was recorded in favour of
Ruqayya Begum widow of late Ramzan Qazalbash on the basis of will dated 31st August 1998 and she while executing registered sale deed dated 14th November 2006 sold the same to the petitioner and through mutation No. 387 dated 13th February 2007 in favour of the petitioner created third party interest during the lifetime of Anjum Qazalbash, the predecessor -in-interest of
respondents Nos.1 to 4, who had never challenged the same till his death i.e. 6th December 2007, but the trial Court and the appellate Court had failed to consider the above important aspect of the matter, thus findings rendered therein reflect misreading and non- reading of evidence, which
suffered from ma terial illegalities and irregularities, therefore, the impugned judgments/decrees
passed by the trial Court as well as the appellate Court cannot be sustained.
In view of the -above, Civil Revision Petition No. 560 of 2010 is allowed, the impugned
judgment /decree dated 29th December 2009 passed by the learned Civil Judge -III, Quetta and
judgment/decree dated 24th September 2010 passed by the learned Additional Sessions Judge -I,
Quetta are set aside and the suit filed by the respondents Nos.1 to 4 (plaintiff s) is dismissed.
Parties are left to bear their own costs.
Decree sheet be drawn.
ZC/61/Bal Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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